State v. Van Pham

• Decision Date: 13 January 1984
• Docket Number: 55210 and 55221,Nos. 55179,s. 55179
• Citation: State v. Van Pham, 234 Kan. 649, 675 P.2d 848 (Kan. 1984)
• Parties: STATE of Kansas, Appellee, v. Thanh VAN PHAM, Appellant. STATE of Kansas, Appellee, v. Cau TRAN, Appellant. STATE of Kansas, Appellee, v. Ngan VAN PHAM, Appellant. *
• Court: Kansas Supreme Court

Page 848

675 P.2d 848

234 Kan. 649

STATE of Kansas, Appellee, v.Thanh VAN PHAM, Appellant.

STATE of Kansas, Appellee, v.Cau TRAN, Appellant.

STATE of Kansas, Appellee, v.Ngan VAN PHAM, Appellant. ^*

Nos. 55179, 55210 and 55221.

Supreme Court of Kansas.

Jan. 13, 1984.

Syllabus by the Court

1.Failure to request a separate trial is a waiver of the right to make such request pursuant to K.S.A. 22-3204.

2.Separate trials should be granted under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant.The usual grounds for severance are: (1)the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.

3.The existence of antagonistic defenses among codefendants is caused for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive.

4.Severance under K.S.A. 22-3204 lies within the sound discretion of the trial court.Reversal of the lower court's denial of severance is justified only when a clear abuse of discretion is established.

5.Alibi, as a defense, places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for the accused to be the guilty party.

6.Rules relative to the use of interpreters in trials are set forth and discussed.

7.Instructing the jury on aiding and abetting is held proper, under facts herein, where all defendants were charged as principals.

8.When the sufficiency of evidence is questioned on appeal, the appellate court must be convinced that when the evidence is viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on briefs, for appellee.

David Michael Rapp, of Moore, Rapp & Schodorf, P.A., Wichita, argued the cause and was on the brief for appellantThanh Van Pham.

James Wilson, P.A., Wichita, argued the cause and was on the brief for appellantCau Tran.

Janet S. Helsel, of Offices of Otto J. Koerner, Wichita, was on the brief for appellantNgan Van Pham.

McFARLAND, Justice:

DefendantsThanh Van Pham, Cau Tran and Ngan Van Pham were convicted in a joint jury trial of two counts of first-degree murder (K.S.A. 21-3401).Each defendant has appealed his convictions and said appeals have been consolidated.

On the evening of June 12, 1982, two Vietnamese men, Den Nguyen and Phong Vihn Thanh Tran were seated at a table in a crowded social club known as the Vietnamese Center which was located at 21st and Arkansas in Wichita, Kansas.According to eyewitnesses the three defendants came into the Vietnamese Center and sat down at the table occupied by the two men.The five gentlemen visited briefly.Thereupon the three defendants stood up, produced guns, and fired a total of 15 to 17 bullets into their hosts.The three defendants then left the building by separate exits and drove away in one car.Additional facts will be stated later in the opinion as are needed in the discussion of particular issues.

The first issue on appeal is alleged error by the district court in refusing to sever the trials of the defendants.

The defendants were all charged in one complaint/information.Each defendant, on appeal, claims error in refusing to sever the trials.We shall first dispose of the issue as it relates to Thanh Van Pham.The record reflects this defendant did not request a separate trial.

K.S.A. 22-3204 provides:

"When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney."

By not requesting a separate trial, Thanh Van Pham has waived the right to make such a request.SeeState v. Jones, 222 Kan. 56, 58, 563 P.2d 1021(1977).

We turn now to this issue as it relates to defendantsCau Tran and Ngan Van Pham.

On September 3, 1982, defendantCau Tran, through his attorney, Mr. Paul D. Hogan, filed a motion for severance from defendantsNgan Van Pham and Thanh Van Pham.In his motion Cau Tran alleged:

"1.Evidence in this cause may be introduced by the prosecution which may be inadmissible against this defendant but which may be admissible against one or more of his co-defendants, all to the prejudice of this Defendant.

"2.The jury will have insurmountable difficulty in distinguishing the alleged acts of this Defendant from the alleged acts of his co-defendants.

"3.During the course of the trial, Cau Tran intends to call as a defense witness the co-defendant, Ngan V. Pham, whose testimony would establish his innocence of the crime charged.A joint trial of the defendants in this cause would preclude Cau Tran from presenting all of the facts and circumstances surrounding the incident to the jury in light of the constitutional provisions that would unquestionably be involved by the co-defendant.

"4.The defenses of the defendants in this cause are antagonistic."

Three days later, September 7, 1982, defendantNgan Van Pham filed a motion for separate trial through his attorney Mr. Phillip Leon.Mr. Ngan Van Pham alleged a trial with his codefendants would deny him due process of law and, further, he intended to call defendantCau Tran as a defense witness.Finally, according to defendantNgan Van Pham, denial of a separate trial would deny him the constitutional right to present all facets of his case.

On September 10, 1982, the motions of defendantsCau Tran and Ngan Van Pham were argued before Judge Hal Malone.During oral argument on the motions, Mr. Hogan revealed Mr. Tran would assert he acted in self-defense.Mr. Hogan orally modified his motion for severance arguing it was only necessary his client, Cau Tran, be separated from Ngan Van Pham, but it was satisfactory if he were to be jointly tried with defendantThanh Van Pham.

Mr. Leon argued a joint trial between the defendants would be prejudicial to his client, Ngan Van Pham, as evidence which would be inadmissible as to Ngan Van Pham would be admissible as to one or more of the codefendants.Mr. Leon never identified what this evidence would be.The main thrust of Mr. Leon's attempt to have Mr. Ngan Van Pham severed was that his client was going to assert an alibi and wanted to call Mr. Cau Tran to testify Ngan Van Pham was not in the vicinity at the time of the killings.Mr. Leon feared constitutional dictates could preclude him from examining defendantCau Tran at trial.Mr. Hogan also argued to the court the similarity in the names of the Vietnamese defendants and witnesses would cause great difficulty at trial and confuse the jury to the prejudice of the defendants.

In response to the two motions for severance, Mr. Waller, for the State, brought to the court's attention the crimes alleged were part of a single transaction, and the State's evidence would show all three defendants simultaneously gunned down the two victims, Mr. Den Nguyen and Mr. Phong Vihn Thanh Tran.In other words, the State argued the evidence would show all of the events, all of the evidence, arose out of the same transaction.The State found nothing inherently antagonistic in the self-defense theory of defendantCau Tran and the alibi defense of Ngan Van Pham.

In denying defendantsCau Tran and Ngan Van Pham's motions for severance, Judge Malone commented:

"THE COURT: Well, there isn't any question but what there is statutory authority for charging all three of the Defendants in the same Information and trying them all together.As Mr. Waller points out, it's one transaction, single transaction.The, I guess, crime makes strange bedfellows the same as politicians--politics makes strange bedfellows.I don't perceive a great deal of difficulty in the similarity of names, at least not enough to sever the trials, and the defenses claimed by the two Defendants are not antagonistic.I conclude the Defendants have failed to state sufficient reasons to sever themselves from the trial.The motion--each motion is overruled."

K.S.A. 22-3202(3) allows two or more defendants to be charged in the same criminal complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting a crime or crimes.Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.(See alsoVernon's KansasC.Crim.Proc. § 22-3202[1973];Fed.R.Crim.Proc. 8.)As previously noted, 22-3204 provides when two or more defendants are jointly charged with any crime, the trial court may order a separate trial for any one of the defendants when requested by such defendant or the prosecuting attorney.(See alsoVernon's KansasC.Crim.Proc. § 22-3204;Fed.R.Crim.Proc. 14.)

Separate trials should be granted under 22-3204 when severance is necessary to avoid prejudice and ensure a fair trial to each defendant.State v. Myrick & Nelms, 228 Kan. 406, 415, 616 P.2d 1066(1980);State v. McQueen & Hardyway, 224 Kan. 420, 423, 582 P.2d 251(1978);andUnited States v. Frazier, 394 F.2d 258, 260(4th Cir.), cert. denied393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445(1968).In State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255(197...